State Policy's Role in Prescribing

Last month the Drug Enforcement Administration (DEA) clarified that it would be extending the public health emergency (PHE) allowances for using telehealth to prescribe controlled substances for an additional six months after the end of the PHE (May 11, 2023). This would mean that practitioners may still prescribe controlled substances to patients via telehealth without having had an in-person exam or meeting one of the other exceptions found in federal law until November 11, 2023. After November 11, 2023, those practitioners who during the pandemic and the six months after the end of the PHE used telehealth to prescribe to patients without conducting an in-person exam, may continue to prescribe controlled substances to those patients for an additional year. However, during that time the practitioners will need to meet the in-person exam requirement or one of the other exceptions currently in federal law for those patients. The DEA, in the meantime, is continuing to work on regulations regarding the use of telehealth to prescribe controlled substances.

While significant, the federal laws and actions of the DEA are only part of the story regarding the use of telehealth to prescribe. While federal law does dictate how telehealth is used to prescribe controlled substances, state laws impact the prescribing of all other medications, which can include controlled substances, and devices. Therefore, practitioners need to be aware of what each state’s policies are regarding the use of telehealth to prescribe. This can be very complicated as the states all vary in their approaches in how to address this issue and while a practitioner may be very familiar with their own state’s policies, they may face a very different situation if a patient is in a different state. What follows are a few things to be aware of when trying to navigate this landscape, as well as some interesting policy developments. (NOTE: the below should not be considered legal advice. CCHP always recommends you consult with legal counsel for a formal legal opinion.)